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Communication and the Internet What You (and Others) Say May Be Used Against You in a Court of Law… David Hricik Mercer Law School 1.

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Presentation on theme: "Communication and the Internet What You (and Others) Say May Be Used Against You in a Court of Law… David Hricik Mercer Law School 1."— Presentation transcript:

1 Communication and the Internet What You (and Others) Say May Be Used Against You in a Court of Law… David Hricik Mercer Law School 1

2 Coverage Papers Linking to and from law firm web sites Social networking sites Unsolicited e-mail and voice-mail Adventures in e-mail Informal investigations on the internet Web tracking Metadata Presentation Linking Social networking Informal investigations Adventures in e-mail Web tracking Metadata – recipient duties 2Mercer Law School

3 Linking to and From Websites Keep the materials in mind when we address social networking sites…. Mercer Law School3

4 Linking: A Building Block for Understanding Social Networking Sites Linking to Lawyers Page Is the lawyer responsible for statements made by third parties that the lawyer could not ethically make? If so, what should you do? Linking From Lawyers Page Can you link to a site that says something that you could not ethically say? If not, what should you do? Mercer Law School4

5 Are You Your Clients and Friends and Everyone Elses Keeper? When a third party links to a lawyers site and the lawyer is aware of the link, what obligations does he have? Mercer Law School5

6 The Bar Opinions So Far Bare links with no description or commentary – Fine Third party makes comments that the lawyer ethically could make – Fine Third party makes statement lawyer could not make: – Unethical if lawyer induced or otherwise assisted third party in effort – Unethical if payment made – What if lawyer not involved at all? Mercer Law School6

7 Independent Third Party Links Why it should be okay Third partys 1 st Am. Rights Third party not bound by lawyer ethics rules Third party not induced by lawyer so lawyer not violating rule Why it might not be Client linkers Non client linkers Mercer Law School7

8 Client Linkers: OH & SC Opinions Step One Lawyer should counsel the client about any omission or error Step Two If client refuses to make change, lawyer should give consideration to withdrawal. Mercer Law School8

9 Nonclient Linkers: No Opinion, Yet There is no Step One Cant counsel non-clients because of Rule 4.3 There is no Step Two Cant seriously consider withdrawal because there is nothing to withdraw from. Mercer Law School9

10 The Flip Side? Can a firm gratuitously post something on its webpage and link to another lawyer that would violate the ethical rules if made by that lawyer? – If the information is negative and confidential? One opinion: yes. – If its praise? Same issues as third-party posts; firm has 1 st Am. rights and rules dont seem to be violated, but risky. Mercer Law School10

11 What to Do Obviously the firm needs to (and presumably does) have a policy in place about what it links to. If you become of a link to the firms site that concerns you, raise it with firm. Mercer Law School11

12 Social Networking Sites Linking issues and more Mercer Law School12

13 What is a social networking site? Classmates Facebook LinkedIn Plaxo MySpace Probably a ton more. Mercer Law School13

14 What Some Allow You can post status about what youre doing You can read your friends status You can recommend people, and they can recommend you – and this information is posted. You can find out whether someone you know knows a particular person You can search for people, expertise, etc. Mercer Law School14

15 The Good and the Bad The Bad Potential problems much like linking, and beyond The Good Potential ways to investigate opposing counsel, witnesses, and third parties Mercer Law School15

16 The Bad: What You Write All information relating to the representation of a client should be treated in confidence. – Internet is one big elevator – Avoid posting or twittering about client matters – Some judges have banned posting during trial Mercer Law School16

17 The Bad: What You Write Static Social Network Page Advertising rules likely apply. – No false or misleading statements, including comparisons that cant be substantiated – If you invite e-mail or contact about a problem, special issues State law tort claims likely apply to disparaging statements Interactivity Potential for: – Embarrassment – State law tort claims – Improper solicitation in person solicitation Chat – Potential for improper targeted mailing E-mail – Potential for UPL – Potential for inadvertent conflicts and attorney client relationships Mercer Law School17

18 Your Musings On-Line Posts are Not Private and Oral Interactions: Conflicts of Interest and Liability Mercer Law School18

19 Embarrassment Lawyer wrote on blog that judge was an evil, unfair witch. – Reprimand and fined Lawyer posted about her boss, Judge Clueless – Lost job of 19 years Judge Kozinski posted art on his site – Google it. Judge communicated with friend-defense counsel through Facebook and Googled plaintiff. – Reprimanded Mercer Law School19

20 The Flip Side? Can something you say about a lawyer be used against you? – If the information is negative and confidential? One opinion: yes. – If its praise? Same issues as third-party posts; firm has 1 st Am. rights and rules dont seem to be violated, but risky. Mercer Law School20

21 Pre-AC Disqualification: Rule 1.18 Rule 1.18 & Common Law A person who in good faith discusses forming an AC relationship gets many of the same protections as a former client The Risks You could receive information that could disqualify your firm from a representation Mercer Law School21

22 Providing Legal Advice UPL Going much beyond generalized legal discussion risks UPL – Low risk – No precedent Forming AC Relationships Giving legal advice can create attorney client relationships – Liability Togstad – Conflicts Mercer Law School22

23 Improper Solicitations Asynchronous E-mail Targeted e-mails are generally viewed as letters so must comply with those rules – Advertisement Synchronous May be treated as in-person solicitation and so prohibited, unless fall into narrow exception Chatrooms – Blogging/posting at same time as third party Mercer Law School23

24 Static Third Party Posts South Carolina Opinion You may solicit endorsements that comply with state ethics rules as if you made them – You cannot solicit improper endorsements or recommendations South Carolina Opinion You should not allow publication of improper testimonials. – How do you do this? Client Nonclient Mercer Law School24

25 Much Like the Linking Opinions Bare mention with no description or commentary – Fine Third party makes comments that the lawyer ethically could make – Fine Third party makes statement lawyer could not make: – Unethical if lawyer induced or otherwise assisted third party in effort – Unethical if payment made – What if lawyer not involved at all? Mercer Law School25

26 Some Kind Words About a KLG Lawyer Mercer Law School26

27 Is LinkedIn Just a Link? If so, must you stop unethical recommendations? Mercer Law School27

28 The Good Social Networking Sites are Great Resources for Investigating Others Mercer Law School28

29 Suppose Theyve Hired an Expert… Mercer Law School29

30 Mercer Law School30

31 How Can I Learn More? Mercer Law School31

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35 Limitations on Investigations Oregon website opinion – 4.2: No ex parte contacts – 4.3: Fair to unrepresented persons Facebook Opinion from Pennsylvania – 8.4: no dishonesty Mercer Law School35

36 And Remember If you can investigate them, they can investigate you. Mercer Law School36

37 What to Do Remember the persistence of posts and assume they are public and permanent If third party posts concern you, consider what you can do Let your clients know that social networking sites can be used against them Remember that ethical rules apply on-line, too Mercer Law School37

38 Adventures in E-mail Misdirection: auto-fill and other errors Mobile lawyers: which law applies to privilege waiver? Clients using third party computers to email lawyers – Protecting your clients – Investigating opposing parties Mercer Law School38

39 Misdirection Ripped from todays headlines… It still happens to the best of us Mercer Law School39

40 Privilege Waiver Misdirection: in some states, misdirection waives privilege even if inadvertent and despite reasonable care. Traveling lawyers beware! Mercer Law School40

41 Third Party Computers and E-mail The Issue If a client e-mails her lawyer by using a computer owned by her employer who has effective policies in place stating that e-mails are not confidential, is privilege waived? The Resolution Multi-factor test being used Mercer Law School41

42 Third Party Computers Three issues from one problem: – Protect your litigation clients – Consider if opponent waived privilege by using third party computers Waiver even if your client doesnt own the computer? – Ensure your transactional clients have good policies in place Mercer Law School42

43 No PrivilegeMaybePrivilege Policy clear? Does policy allow for exceptions? Was employee assured it was just policy? Was policy strictly enforced? Was enforcement sporadic or ad hoc? Was there in fact no monitoring? Did third parties have unrestricted access? Did third parties have limited access, or subject to confidentiality? Was content protected from third parties? Splash screen?Signed by employee? Not clear employee even knew of it? 43

44 What to Do Forward, reply to all, reply… Be sure your clients are not waiving privilege Advise your clients to adopt policies and procedures that meet the developing guidelines Check whether opposing parties are using third party computers – Cases so far involve employer v. employee disputes – But no apparent reason why waiver would not apply as to third parties. Mercer Law School44

45 Tracking Wired Magazine reports that Adobe Flash (ubiquitous) allows for gathering of substantial personal information! Mercer Law School45

46 Metadata Here, IT Takes Care of it… Mercer Law School46

47 What About Your client Your home computer Your pda… There will be mistakes… Mercer University School of Law47

48 Mercer University School of Law48 Recipients Duties Is transmission of metadata in a file like inadvertently faxing a privileged document? –If so, then rules and bar opinions that require notifying the sender of the inadvertent transmission apply

49 Mercer University School of Law49 The Metadata Divide Bar associations disagree on – whether the recipient can look to see if metadata is there; – whether the recipient has to notify the sender of its presence; – whether the recipient-lawyer, or her client, decides what to do about receiving metadata.

50 Mercer University School of Law50 Rule 8.4 It is professional misconduct to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Is it dishonest to look for metadata?

51 Mercer University School of Law51 Model Rule 4.4(b) & Opinions MR 4.4(b): A lawyer who receives a document relating to the representation of the lawyers client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. Whether lawyer must follow senders instructions is a matter beyond the scope of the rule. Most states: No adoption of 4.4(b), and no opinion. DC 4.4(b): A lawyer who receives a writing relating to the representation of a client and knows, before examining the writing, that it has been inadvertently sent, shall not examine the writing, but shall notify the sending party and abide by the instructions of the sending party regarding the return or destruction of the writing

52 Can You Look for Embedded Data? Must You Notify? NY Dishonest to look Notify of receipt FL Cant look; Dishonest? Notify of receipt Ala Dishonest to look Notify of receipt MD Can view and use VT Can view (must view?) Notify if should know inadvertent DC Weird approach PA Facts & Circs to both questions West Va: Maybe cant look Notify if actually know inadvertent Maine Cant Look Must Notify ABA Can look Notification undecided What about… Your State? Federal court? Mercer University School of Law52

53 Mercer University School of Law53 Who Decides? The comments to Model Rule 4.4(b) say that, although the lawyer must notify the sender, whether the lawyer must follow the senders instructions is not addressed by the rules. Is it your call, or your clients as to what to do? Can you act without talking to your client? – Do you do so at your peril? – Can you reject your clients decision to use the document?

54 Mercer University School of Law54 Two Stories: Any Lesson? How should a lawyer respond to an opponents transmission of embedded data? – Microsoft story – Vince Ps story

55 Thank You David@Hricik.com www.Hricik.com Mercer Law School55


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